An even worse constitution than the US: California

[Sanford Levinson]

One certainly shouldn't infer from a single case "that American
constitution rules in general are defective."  The problem is that there
are far more illustrations of the point.  And the further problem is
that the legal academy by and large isn't interested in the consequences
of "hard-wired" constitutional rules since they don't generate what we
define as "interesting litigation."  Thus our propensity to fiddle while
Rome burns (unless someone is prosecuted for arson).

 

sandy

 

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Richard Kay
Sent: Monday, February 16, 2009 8:15 AM
To: CONLAWPROF at lists.ucla.edu; conlawprof-bounces at lists.ucla.edu
Subject: RE: An even worse constitution than the US: California

 


Alternatively, one could say that the rules are doing the work they were
intended to do. Constitutional rules exist to make it harder to govern
by withdrawing certain possible courses of  action.  ("The constitution
recognizes higher values than speed and efficiency.") It seems the
problem could as well be described as the refusal of the elected
officials to govern within the rules.That kind of human failure can
confound any set of rules, even the most modest ones essential to the
definition and functioning of any government,   

Having said that, it is true, of course, that certain sets of rules are
more prone to this kind of failure than others. Maybe the California
super-majority rules are an example. I wouldn't infer from this case,
however, that American constitutional rules in general are defective. 


Richard S.Kay                                                
Wallace Stevens Professor of Law                         
University of Connecticut
School of Law
65 Elizabeth St
Hartford, CT 06105
USA

Tel  (860) 570-5262
Fax (860) 570-5242

Please address all future mail to richard.kay at law.uconn.edu




"Sanford Levinson" <SLevinson at law.utexas.edu> 
Sent by: conlawprof-bounces at lists.ucla.edu 

02/15/2009 09:18 PM 

To

"Heyman, Steve" <Sheyman at kentlaw.edu>, "Mark Tushnet"
<mtushnet at law.harvard.edu>, <SCHROEDER at law.duke.edu>,
<RJLipkin at aol.com>, <wasserma at fiu.edu>, <CONLAWPROF at lists.ucla.edu> 

cc

 

Subject

RE: An even worse constitution than the US:  California

 

 

 




California is at the brink of complete meltdown because of the inability
to get the required 2/3 vote in each house of the bicameral legislature
(in order to raise taxes).  This is another example of the fact that
formal rules matter, that it may not be possible to "work around" any
and all rules simply because the alternative is catastrophe.   
  
Any American law professor invited to give advice on constitutional
design should have the grace to say that the best advice we could offer
is to stay away from any and all American constitutions, save, perhaps
the Nebraska one (though I certainly don't rule out the possibility that
some other states may also have sensible constitutions). 
  
sandy 

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